AURUM TECHNOLOGY INC. INTERNET MASTER SERVICES AGREEMENT

 

 

                                                                   Exhibit 10.36

 

                              AURUM TECHNOLOGY INC.

 

                       INTERNET MASTER SERVICES AGREEMENT

 

      As of the date set forth below (the "Effective   Date"),   Aurum   Technology

Inc., a Delaware   corporation   ("Aurum"),   and the   customer   whose name appears

below   ("Customer")   hereby enter into this Internet Master   Services   Agreement

consisting of the Standard   Terms and   Conditions   and the Schedules   marked and

initialed   below,   which are   attached   hereto and   incorporated   herein for all

purposes.

 

      Unless otherwise   specifically   provided   otherwise in this Agreement or a

Schedule,   AURUM   or its   subcontractors   will   be   the   exclusive   provider   to

Customer,   and Customer agrees to exclusively   obtain from AURUM, the Authorized

Services   described in the Schedules marked below,   which Schedules are attached

hereto and   incorporated   herein by reference.   The   Schedules   marked below set

forth the specific terms and conditions applicable to the Authorized Services.

 

                                                    Place an "X" in the

                                                  appropriate box(es) below

                                                   -------------------------

 

Schedule A - Aurum Personal eBanking Services                 |X|

Schedule B - Aurum Business eBanking Services                 |X|

Schedule C - Bill Payment Services                            |X|

 

|_| Schedule D - Internet Services: Select Package

                 |X| Standard (25 Pages)

                 |_| Premium (50 Pages)

                 |_| Custom

                 |_| Migrate Existing Web Site to Aurum

 

                     Optional (Choose one)

                      ---------------------

                     SSL Encryption Certificate (1st Year)

                        GEO Trust                   |_|

                        VeriSign                    |_|

 

      IN WITNESS   WHEREOF,   the parties have duly executed this Agreement by the

duly authorized signatures below as of June 11, 2003 (the "Effective Date").

 

CUSTOMER:                                AURUM:

      The Town Bank of Westfield               Aurum Technology, Inc.

 

         /s/ Robert W. Dowens, Sr.                 /s/ Anthony Ficarra

        ----------------------------             ----------------------------

          [Authorized Signature]                   [Authorized Signature]

Name: Robert W. Dowens, Sr.              Name: Anthony Ficarra

      ------------------------------

 

Title: President & CEO                   Title: Senior Vice President Electronic

      ------------------------------            Business

Date: June 11, 2003                      Date: 7/22/03

      ------------------------------            ------------------------------

 

ADDRESS:                                 ADDRESS:

      520 South Avenue                         2701 W. Plano Parkway

      ------------------------------           Suite 600

      Westfield, New Jersey                     Plano, Texas 75075-8206

      ------------------------------           Attn: Vice President of eBusiness

      07090

      ------------------------------

 

CONTACT INFORMATION:                     CONTACT INFORMATION:

Telephone: 908-301-0800                  Telephone: (972) 943-2600

Facsimile: 908-301-0894                  Facsimile: (972) 943-2802

 

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                    AURUM INTERNET MASTER SERVICES AGREEMENT

 

                           STANDARD TERMS AND CONDITIONS

 

As of the   Effective   Date,   Aurum and Customer   hereby enter into this Internet

Master Services Agreement   consisting of these Standard Terms and Conditions and

the   Schedules   marked and initialed on the   signature   page of this   Agreement,

which are attached hereto and incorporated herein for all purposes.

 

      WHEREAS, Aurum provides Internet Services to financial institutions; and

 

      WHEREAS,   Customer   desires to purchase   certain   Internet   Services   from

Aurum.

 

      NOW,   THEREFORE,   in   consideration   of the   mutual   agreements   set forth

herein,   and   for   other   good   and   valuable   consideration,   the   receipt   and

sufficiency   of which   are   hereby   acknowledged,   Aurum and   Customer   agree as

follows:

 

                              ARTICLE I - SERVICES

 

1.1    Authorized Services. During the Term, Aurum agrees to provide to Customer,

      and Customer agrees to accept from Aurum, the Authorized Services, subject

      to the terms and conditions set forth herein.   Customer   agrees that Aurum

      shall be the sole and   exclusive   provider   of the   services   that are the

      subject   matter of this   Agreement for the   Customer.   For purposes of the

      foregoing, the term "Customer" shall include Customer's affiliates.

 

1.2    Additional   Services.   If Customer   requests   Aurum to perform any service

      that is not an Authorized Service,   then Aurum may provide such service as

      an "Additional Service".

 

1.3    Software   Access   License.   During the Term and subject to the limitations

      set forth herein, Aurum grants to Customer a limited,   non-exclusive,   and

      non-assignable   license to access the Software   located on Aurum's   Server

      for the purpose of receiving the Authorized   Services and using the "Aurum

      System" to provide banking functionality and other related services to the

      End User   Customers.   Aurum   reserves   all   rights not   expressly   granted

      herein.   Without limiting the foregoing,   Customer has no right to possess

      the Software or any copies thereof in any form.

 

1.4    Aurum Mark   License.   During the Term and subject to the   limitations   set

      forth   herein,   Aurum   grants to   Customer a limited,   non-exclusive,   and

      non-assignable   license to use Aurum's   service mark and trademark   solely

      for the purpose of describing the Authorized Services and the Aurum System

      to the actual and potential End User   Customers and for no other   purpose.

      Aurum reserves all rights not expressly granted herein.

 

1.5    Customer Mark License.   During the Term and subject to the limitations set

      forth   herein,   Customer   grants to Aurum a   limited,   non-exclusive,   and

      non-assignable   license to use   Customer's   service   marks and   trademarks

      solely for the purpose of performing   the   Authorized   Services and for no

      other purpose. Customer reserves all rights not expressly granted herein.

 

1.6    Regulatory   Compliance.   Customer shall be responsible   for (i) compliance

      with all state and federal laws and regulations   governing banks and other

      financial institutions; (ii) any disclosure to its End User Customers with

      respect to the   Authorized   Services and each Customer   product or service

      made   available   through the Aurum   System   ("Customer   Product/Service");

      (iii) the terms and conditions of any Customer   Product/Service;   (iv) the

      terms,    conditions,    and   any    limitations    on   which    any    Customer

      Product/Service   may be accessed,   utilized or transactions   originated by

      any End   User   Customer;   (v)   determining   the   authority   of any   person

      accessing a Customer Product/Service; and (vi) preparing, maintaining, and

      monitoring   compliance with verifiable   documentation   with respect to the

      foregoing.

 

 

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      Customer   acknowledges   and agrees that Customer shall not rely upon Aurum

      for advice regarding   compliance with governmental   regulations.   Customer

      must independently verify its compliance with such regulations through its

      own legal counsel. Aurum shall use commercially reasonable efforts, during

      the Term of this Agreement,   to be in substantive   compliance with federal

      rules and regulations as they relate to vendors of Authorized Services. In

      the event   that there is a   significant   change in the manner by which the

      Authorized   Services   can   be   furnished   hereunder,   as   a   result   of   a

      regulatory compliance   requirement,   Aurum and Customer shall negotiate in

      good faith to resolve   the   compliance   issue.   If Aurum   determines   that

      compliance is cost prohibitive, Aurum may elect to terminate the Agreement

      without   penalty,   by   furnishing   Customer   with   thirty   (30) days prior

      written notice.   Regulatory disclosure requirements are the responsibility

      of Customer.

 

      If   Customer   believes   that any   modifications   to the Aurum   System   are

      required under any laws, rules, or regulations,   Customer will promptly so

      inform Aurum.   Aurum will perform any modifications to the Aurum System or

      recommend    changes   to   operating    procedures   of   Customer   that   Aurum

      determines are necessary or desirable;   provided, that if any such changes

      or   modifications   result in a   significant   increase   in Aurum's   cost of

      providing   Authorized   Services,   Aurum will be entitled   to increase   the

      charges   under   this   Agreement   by an   amount   that   reflects   a pro rata

      allocation of Aurum's increased cost among the applicable Aurum customers.

      New or   enhanced   Aurum   System   features,   functions,   reports,   or other

       services that may result from such modifications or recommendations may be

      provided as an Additional Service. Notwithstanding the foregoing, Customer

      acknowledges that the Aurum System may, from time to time, consist in part

      of System(s) licensed by Aurum from third-parry   vendor(s) and, therefore,

      Aurum shall have no duty or   responsibility to modify any such third-party

      System under this   Section,   except to the extent that the vendor   thereof

      has such a duty or   responsibility   to modify such System   pursuant to the

      applicable license agreement between Aurum and such vendor.

 

1.7    Audits.    Aurum   will   provide    auditors   and   inspectors   that   Customer

      designates   in writing with   reasonable   access to the Data Center   during

      business hours for the limited purpose of performing audits or inspections

      of Customer's business. Aurum will provide to such auditors and inspectors

      assistance   as Aurum deems   reasonable.   Customer   shall bear all expenses

      associated with such audit or inspection and shall also   compensate   Aurum

      for any   Additional   Services   provided   in   connection   with the audit or

      inspection.   Customer shall insure that any audit or inspection   requested

       by   Customer   shall be   conducted   without   undue   disruption   to   Aurum's

      business or operations. Aurum will not be required 1) to provide access to

      data of other   Aurum   customers,   or 2) permit   access to the Data   Center

      during   such   times as Aurum   deems   that such   access   would be likely to

      create undue   disruption to its operations   (e.g.,   when other auditors or

      inspectors are present).

 

1.8    Aurum   System   Changes.   Aurum   shall   have the right to modify   the Aurum

      System including, without limitation, to (i) make changes in the method of

      access to or delivery of the Aurum System including,   without   limitation,

      interface procedures ("Interface Changes"), (ii) make modifications to the

      Aurum System which are provided to Customer at no additional   cost ("Aurum

      System   Enhancements").   The   identification in this Agreement of specific

      brands or names of third-party   providers is for reference only.   Customer

      acknowledges   and   agrees   that it will   not rely on such   brand   names or

      third-party providers as a promise by Aurum to use any particular brand or

      third-party provider.   Aurum reserves the right to substitute any brand or

      third-party provider of the Authorized   Services,   at its sole discretion,

      at any time with or   without   notice,   provided   that the   quality   of the

      Authorized Services is not materially diminished by such substitution.

 

1.9    Correction of Errors. Aurum will correct any errors in customer files that

      result in errors in reports or other   output where such errors (i) are due

      solely to either malfunctions of Aurum's equipment or the Aurum Systems or

      errors of Aurum's operators, programmers, or other personnel, and (ii) are

      called to Aurum's attention within the time frames specified below.   Aurum

      will, to the extent reasonably practicable, correct any other errors as an

      Additional   Service.   Customer will balance   reports to verify master file

      information   and will   inspect   and review all   reports   and other   output

      (whether printed or electronically transmitted) created from data provided

      by Customer to Aurum. Customer will reject all incorrect reports or output

      (i) within two   Business   Days after   receipt of daily   reports or output,

      (ii) within

 

 

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      five Business Days after receipt of annual,   quarterly, or monthly reports

      or output, and (iii) within three Business Days after receipt of all other

      reports or output.   This   Section   1.09 sets   forth   Customer's   exclusive

      remedies   for errors in reports or other   output   provided   by Aurum under

      this Agreement.

 

1.10   Aurum as Customer's Agent.   Customer   acknowledges and agrees that Aurum's

      implementation and provision of Authorized Services hereunder necessitates

      certain   agreements   with third   parties (such as service   agreements   and

      licensing   agreements   for software or hardware used in the Aurum Personal

      eBanking Services). Customer hereby appoints Aurum as Customer's agent (a)

      at Customer's   request,   to execute or enter into,   on Customer's   behalf,

      licensing or other agreements   reasonably for Aurum's   implementation   and

      provision of the   Authorized   Services   hereunder,   and (b) to install any

      hardware or software   reasonably   required for Aurum's   implementation and

      provision of the Authorized Services hereunder.

 

1.11   Core   Processing.   During the Term,   Customer is required   (i) to maintain

      Aurum as its core data processing vendor or (ii) to utilize Aurum provided

      systems for its core data processing.   Customer's failure to do so will be

      considered a breach of this Agreement by Customer.

 

                                ARTICLE II - TERM

 

2.1    Term.   This   Agreement   will   begin   on the   Effective   Date   and,   unless

      terminated earlier pursuant to the terms of this Agreement,   will continue

      for a period of five (5) years   from the   Operational   Date (the   "Initial

      Term"). Thereafter, this Agreement will automatically renew for successive

      terms of two (2) years each (the   "Renewal   Terms")   unless   either   party

      gives the other party written   notice at least six (6) months prior to the

      expiration   date of the Initial   Term or the   Renewal   Term then in effect

      that the Agreement will not be renewed beyond such Initial Term or Renewal

      Term.   Notwithstanding   the   termination of this Agreement for any reason,

      each Schedule entered into prior to the effective date of such termination

      will   remain in full force and effect in   accordance   with the   provisions

      thereof,   including each of the provisions of this Agreement   incorporated

      by reference into such Schedule.

 

                         ARTICLE III - PAYMENTS TO AURUM

 

3.1.   Fees. Customer agrees to pay the following Fees:

      -----

 

      (a)    Authorized   Services.   Aurum's Fees for the Authorized   Services are

            set forth in the Schedule describing such Authorized Service.

 

      (b)    Additional   Services.   Aurum's   Fees   for   Additional   Services   are

            Aurum's then standard   charges for such services,   or, if Aurum then

            has no standard charges for such services, upon whatever other basis

            that the parties agree.

 

3.2.   Additional   Charges. In addition to the Fees, Customer will also pay Aurum

      the following, if applicable:

 

      (a)    All costs   incurred   by Aurum in mailing   reports,   other   output or

            materials to Customer, its customers, or third parties.

 

      (b)    All reasonable actual, out-of-pocket costs and expenses,   including,

            without limitation,   travel and travel-related   expenses,   which are

            incurred by Aurum in providing   Authorized   or   Additional   Services

            when incurred at Customer's request.

 

      (c)    Any other charges expressly provided in this Agreement.

 

      (d)    All taxes,   however   designated   or levied,   based upon any   charges

            under this Agreement,   or upon this   Agreement,   the Aurum System or

            the   Authorized   or   Additional   Services,    or   materials   provided

            hereunder,   or their use,   including   without   limitation   state and

            local   privilege or excise taxes based on gross   revenue,   sales and

            use taxes,   and any taxes or amounts in lieu thereof paid or

 

 

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            payable by Aurum in respect of the foregoing, exclusive, however, of

            franchise taxes and taxes based on the net income of Aurum.

 

3.3.   Time of Payment.   All charges under this Agreement will be due and payable

      within ten (10) days of invoice   date.   Any charges not paid within thirty

      (30) days of invoice date will bear interest until paid at a rate equal to

      the   lesser of 1.5% per month or the   maximum   interest   rate   allowed   by

      applicable law.

 

3.4.   Cost of Living   Adjustment.   Aurum may, with 60 days' prior written notice

      to   Customer,   increase   the fees and   charges   listed in a   schedule   for

      recurring   services   once in each year of the   initial   or a renewal   term

      after the first year of such term;   but Aurum may not in any year increase

      them more than the percentage   increase in the   Employment   Cost Index for

      Total   Compensation (not seasonally   adjusted),   Private Industry Workers,

      White Collar Occupations Excluding Sales, June 1989=100, published monthly

      by the   Bureau of Labor   Statistics,   U.S.   Department   of Labor,   for the

      12-month   period   preceding the increase.   In   calculating   the percentage

      increase,   Aurum will use the most   recently   available   ECI, as of a date

      that is no more than 30 and no less than 10 days prior to the date for the

      required written notice, and the ECI that preceded it by 12 months. If the

      ECI is no longer published or is replaced by another or an adjusted index,

      Aurum may use a comparable index in calculating increases.

 

3.5.   Service Level Credits. If Aurum fails to meet the Service Levels set forth

      in the applicable Schedules,   then Aurum will apply the applicable credits

      against the Fees.   Payment of the Service Level credits will be Customer's

      sole and exclusive   remedy for damages arising out of the failure of Aurum

      to achieve those Service Levels for which such credits are paid.

 

                           ARTICLE IV - SYSTEMS, DATA,

                           CONFIDENTIALITY AND PRIVACY

 

4.1.   Aurum   Systems.   All   Aurum   Systems   are and will   remain   the   exclusive

      property of Aurum or licensors of such Aurum Systems, as applicable,   and,

      except as   expressly   provided in this   Agreement,   Customer   will have no

      ownership   interest   or   other   rights   in   any   Aurum   System.    Customer

      acknowledges that the Aurum Systems include Aurum proprietary   information

      and agrees to keep the Aurum Systems   confidential at all times.   Upon the

      expiration   or   termination   of this   Agreement,   Customer will return all

      copies   of   all   items   relating   to the   Aurum   Systems   that   are in the

      possession   of Customer and certify to Aurum in writing that   Customer has

      retained no material relating to the Aurum Systems.

 

4.2.   Customer's   Information.   Information   relating   to   Customer   or End User

      Customers   contained in Customer's data files is the exclusive property of

      Customer and Aurum will only be the custodian of that   information.   Aurum

      agrees to hold in confidence all   proprietary   information of Customer and

      End User   Customers   provided to Aurum in   accordance   with   Section   4.3.

      However,   upon the request of any appropriate   federal or state regulatory

      authority with jurisdiction over Customer's   business and after Aurum has,

      when reasonably   possible,   notified Customer of such request,   Aurum will

      allow   such   authority   access to all   records   and other   information   of

      Customer and its   customers in the   possession   of Aurum and provide as an

      Additional Service any related assistance that is required. Promptly after

      the   termination   or expiration of this Agreement and the payment to Aurum

      of all sums due and owing,   including   without   limitation any amounts due

      under Sections 5.5 or 5.6, Aurum will, at Customer's   request and expense,

      return to   Customer   all of   Customer's   information,   data,   and files in

      Aurum's then standard machine-readable format and media.

 

4.3.   Confidentiality. Except as otherwise provided in this Agreement, Aurum and

      Customer each agree that all information   communicated to one by the other

      or the other's   affiliates,   whether   before or after the Effective   Date,

      will be received in strict   confidence,   will be used only for purposes of

      this Agreement, and except for the requirements of Section 4.2 will not be

      disclosed by the recipient party, its agents, subcontractors, or employees

      without the prior written consent of the other party. Each party agrees to

      take all   reasonable   precautions   to prevent   the   disclosure   to outside

      parties of such information,   including,   without limitation, the terms of

      this   Agreement,   except as required by legal,   accounting,   or regulatory

      requirements   beyond the   reasonable   control of the recipient   party.   If

      Customer is required to disclose any   proprietary   information of Aurum in

      accordance with any such legal,   accounting,   or regulatory   requirements,

      then   Customer   will

 

 

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      promptly   notify Aurum of such   requirement   and will cooperate with Aurum

      (at Aurum's   expense) in Aurum's   efforts,   if any, to avoid or limit such

      disclosure (including,   without limitation,   obtaining an injunction or an

      appropriate   redaction of the   proprietary   information in question).   The

      provisions of this Section will survive the   expiration or   termination of

      this Agreement for any reason.

 

4.4.   Privacy.   Notwithstanding any provision in this Agreement or the Schedules

      to the   contrary,   Aurum   agrees that (i) the data of Customer is owned by

      Customer,   (ii) Aurum will maintain the confidentiality of Customer's data

      in accordance   with Section 4.3 of this   Agreement,   (iii) Aurum will only

      use Customer's data to provide the Authorized   Services,   and for no other

      purpose without   Customer's   prior written   consent,   which consent may be

      withheld for any reason,   (iv) Aurum will safeguard the data in accordance

      with Section 4.6 and (v) subject to Customer's   payment of all charges due

      to   Aurum   and to   applicable   regulatory   requirements,   Aurum   will,   at

      Customer's   request,    either   return   or   destroy   Customer's   data   upon

      termination or expiration of this Agreement.

 

4.5    Safeguarding   Data Integrity.   Aurum will make reasonable   efforts to: (i)

      ensure the security and confidentiality of End User Customer   information;

       (ii) protect against any anticipated threats or hazards to the security or

      integrity of such   information;   and (iii)   protect   against   unauthorized

      access to or use of such information that could result in substantial harm

      or inconvenience to any End User Customer.   Aurum will provide   additional

      internal   computer data   integrity   safeguards   that   Customer   reasonably

      requests as an   Additional   Service.   Aurum will also employ and   maintain

      controlled access systems in the Data Center.

 

4.6    Security.   During the Term,   Aurum   will   employ   commercially   reasonable

      system security measures. At Customer's request, Aurum will make available

      to Customer a description   of its methods and   procedures to safeguard the

      Aurum   System and,   as part of Aurum's   Authorized   Services,   may provide

      Customer   and   Customer   Data Center with   procedures,   which   Customer is

      obligated   to employ to help secure the   integrity of the Aurum System and

       Customer's   data.   Customer   shall have no right,   license or privilege to

      conduct its own security or intrusion   testing of the Aurum System without

      the express written   permission of Aurum.   Aurum agrees to notify Customer

      of a security breach of an End User Customer's account on the Aurum System

      immediately   or no   later   than 24   hours   following   discovery.   Customer

      understands   and   acknowledges   that   certain   risks are   inherent   in the

      transmission of information over the Internet. Customer chooses to use the

      security   measures,   which may be   provided   by Aurum   even   though   other

      security procedures are available.

 

      Customer   shall   inform   Aurum   prior to   creating   any   connection   to an

      Internet Service Provider (ISP) or other computer services company if such

      connection is made from any point on Customer's   computer   network that is

      connected to Aurum. In the event that such a connection to the Internet is

      to be made,   Customer must first obtain the firewall and Internet security

      policy   document of Aurum.   Customer   hereby   agrees to abide by the rules

      contained in such document. This document shall be provided to Customer at

      Customer's   request.   This   document   may be revised by Aurum from time to

      time   to keep   current   with   technology   and   Customer   shall   be   solely

      responsible    for    ensuring    its    compliance    with   the   most   current

      requirements.

 

 

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4.7    Contingency   Planning.   Each party's contingency   planning activities will

      comply with such of the following regulatory policies as may be applicable

      to Customer's   business,   as the same may be amended or replaced from time

      to time: (a) Federal Deposit Insurance Corporation,   Financial Institution

      Letter.   FIL-68-97,   dated   July 14,   1997;   (b)   Federal   Reserve   System

      Supervision and Regulation, Number SR 97-15, dated May 2, 1997; (c) Office

      of the   Comptroller   of the Currency,   OCC 97-23,   dated May 16, 1997; (d)

      Office of Thrift   Supervision,   CEO Ltr 72, dated July 23,   1997;   and (e)

      National Credit Union Administration, Letter to Credit Unions No. 97-CU-3,

      dated April 7, 1997. If compliance   with any amendments or replacements of

      these   policies   would   significantly   increase   Aurum's cost of providing

      products or   services,   Aurum will be   entitled   to increase   the fees and

      charges   under   an   agreement   by an   amount   that   reflects   a   pro   rata

      allocation of Aurum's increased cost among the Aurum customers affected by

      the change.

 

4.8    Service Auditor's   Report.   Aurum will provide to Customer at Aurum's then

      standard charge, one copy of Aurum's most recent service auditor's report,

      performed pursuant to nationally recognized auditing standards for service

      organizations, applicable to the services provided by Aurum to Customer.

 

                           ARTICLE V - TERMINATION AND

                                 RELATED MATTERS

 

5.1.   Mediation.   If a   dispute   arises   out   of or   relates   to   an   agreement,

      including   but not limited to its   formation or a breach of it, and if the

      dispute cannot be settled through negotiation,   the parties agree first to

      try in good faith to settle the dispute by mediation   conducted   under the

      Commercial Mediation Rules of the American Arbitration Association (except

      for those changes   specifically   set forth in these terms and conditions